Akasha Stephen v Anglicare North Queensland Limited [2024] FWC 2752

1 Fair Work Act 2009 s.394—Unfair dismissal Akasha Stephen v Anglicare North Queensland Limited (U2024/7625) DEPUTY PRESIDENT BEAUMONT PERTH, 2 OCTOBER 2024 Application for an unfair dismissal remedy – non-compliance with directions – case not prosecuted – no reasonable prospects of success – application dismissed. [1] On 2 July 2024, the Commission received an application from Ms Akasha Stephen (the Applicant) asserting she had been unfairly dismissed by Anglicare North Queensland Limited (the Respondent). [2] The application was referred to my Chambers on 4 September 2024 and on that same date directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 1600hrs on Friday, 6 September 2024. [3] The Applicant did not comply with the First Directions and no explanation was provided for the non-compliance. Chambers issued an email to the parties on Tuesday, 10 September 2024, alerting the Applicant to her non-compliance with the First Directions. The Applicant was directed to write to Chambers explaining her non-compliance and seeking an extension of time in which to provide her response (accompanied with reasons) by Thursday, 12 September 2024 (Second Directions). [4] In addition to emailing the Applicant about her non-compliance with the First Directions, on Tuesday, 10 September 2024, Chambers attempted to call the Applicant at approximately 1540hrs. A voice message was unable to be left as the voicemail automated message advised the mailbox was full. [5] The Applicant was non-compliant with the Second Directions and therefore on Thursday, 19 September 2024, directions were issued regarding the potential dismissal of the Applicant’s application. The Applicant was advised that the Commission has powers under s 587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an unfair dismissal application where there is non-compliance with directions. The email set out the hearing date and directions regarding the filing and serving of materials in respect of the potential dismissal of the Applicant’s application. The Applicant was required to file with Chambers and serve on the Respondent her materials by 1600hrs on Monday, 23 September 2024 (Third Directions). [2024] FWC 2752 DECISION -- 1 of 4 -- [2024] FWC 2752 2 [6] The Applicant was non-compliant with the Third Directions and in the absence of having received any communication from the Applicant, the hearing that had been listed for Friday, 27 September 2024, was vacated and the matter was determined on the papers. [7] In short, the Applicant has failed to respond to three sets of directions. Each set of directions issued, draws the parties’ attention to ss 399A and 587 of the Act (dismissal provisions) and emphasises that strict compliance with directions issued is required. [8] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states: 587 Dismissing applications (1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [9] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides: 578 Matters the FWC must take into account in performing functions etc. In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account: (a) the objects of this Act, and any objects of the part of this Act; and (b) equity, good conscience and the merits of the matter; and -- 2 of 4 -- [2024] FWC 2752 3 (c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin. [10] The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.1 [11] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal.2 That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.3 [12] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done nothing to prosecute her case. This is notwithstanding the allocation of this Commission’s resources to assist her with her unfair dismissal application, including emails and a telephone call to remind the Applicant to promptly file the materials necessary to pursue her case or to respond to the potential dismissal of her unfair dismissal application. The Applicant’s non-compliance with the directions and lack of response to written and verbal communication from Chambers, in circumstances where she had not informed the Commission of any unavailability, have led me to this conclusion. [13] It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, her application is dismissed pursuant to s 587(1)(c). [14] An Order4 to this effect is issued concurrently. DEPUTY PRESIDENT Matter determined on the papers. -- 3 of 4 -- [2024] FWC 2752 4 Printed by authority of the Commonwealth Government Printer <PR779887> 1 Viavattene v Health Care Australia [2013] FWCFB 2532, [39]. 2 Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31]. 3 Ibid. 4 PR779888. -- 4 of 4 --